Standing Committee B

[Mr. Win Griffiths in the Chair]

Sexual Offences Bill [Lords]

Clause 10 - Sexual activity with a child

Amendment moved [this day]: No. 157, in 
clause 10, page 4, line 19, leave out 'aged 18 or over'.—[Mrs. Brooke.]

Win Griffiths: With this it will be convenient to discuss the following:
 Amendment No. 158, in 
clause 10, page 4, line 23, leave out 'B is under 16' and insert— 
 'A is aged 18 years or over and B is aged between 13 and 16'.
 Amendment No. 159, in 
clause 10, page 4, line 25, leave out 'B is under 13' and insert— 
 'A is under 18 years and B is more than 3 years younger than A, and A does not reasonably believe that B is less than 3 years younger than A.'.
 Amendment No. 161, in 
clause 11, page 4, line 29, leave out 'aged 18 or over'.
 Amendment No. 162, in 
clause 11, page 4, line 34, leave out 'B is under 16' and insert— 
 'A is aged 18 years or over and B is aged between 13 and 16'.
 Amendment No. 163, in 
clause 11, page 4, line 36, before 'B', insert— 
 'A is under 18 and B is under 16 and A does not reasonably believe that B is 16 or over or,. 
 (iii) '.
 Amendment No. 164, in 
clause 11, page 4, line 37, after 'section' insert 
 'if aged 18 or over at the time of the offence'.
 Amendment No. 166, in 
clause 12, page 4, line 40, leave out 'aged 18 or over'.
 Amendment No. 167, in 
clause 12, page 5, line 10, After 'section' insert 
 'if aged 18 or over at the time of the offence,'.
 Amendment No. 169, in 
clause 13, page 5, line 16, leave out 'aged 18 or over'.
 Amendment No. 170, in 
clause 13, page 5, line 26, after 'section' insert 
 'if aged 18 or over at the time of the offence,'.
 New clause 4—Definition of between 13 and 16— 
'For the purposes of this Act ''aged between 13 and 16'' refers to persons aged 13, 14 or 15.'.
 New clause 5—Penetration involving adult and child— 
'(1) A person (A), aged 18 years or over, commits an offence if— 
 (a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or 
 (b) the activity involves penetration of A's vagina or anus or mouth with B's penis, 
 (c) and the other person (B) is aged between 13 and 16 and A does not reasonably believe that B is 16 or over. 
 (2) A person guilty of an offence under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.
 New clause 6—Penetration involving a child and a child or a young person— 
'(1) A person (A), aged below 18 years, commits an offence if— 
 (a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or 
 (b) the activity involves penetration of A's vagina or anus or mouth with B's penis, 
 (c) and the other person (B) is aged below the age of 16 years and A does not reasonably believe that B is 16 or over. 
 (2) A person guilty of an offence under this section is liable— 
 (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; 
 (b) on conviction on indictment, to imprisonment for a term not exceeding 7 years, 
 (c) in determination of the sentence, consideration shall be given to the age differential between A and B. 
 (3) Prior to sentencing, there shall be a comprehensive assessment by a multidisciplinary agency or Youth Offending Team. 
 (4) Under this clause, a person shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Annette Brooke: This set of amendments could be another solution to our dilemma. Taken together, the amendments could obviate the need for clause 14. Other amendments hang together with those that we are about to discuss, but for the purpose of explaining them, they have been divided into two groups. If I stray on to an amendment from the next group, Mr. Griffiths, I promise that we will not refer to it again.

Win Griffiths: That would mean that we would be here longer this evening, would it not?

Annette Brooke: I shall be as concise as I can, but it is difficult to compartmentalise the amendments, given the way in which they have been drafted.
 We are trying to highlight the difference between under-18s and over-18s. Earlier we strayed on to matters that do not apply, so I want to put it firmly on the record that the amendments are not seeking to abolish the age of consent. The theme that runs through them is an attempt to balance the concern about criminalising all consensual sexual behaviour with retaining the age of consent. 
 New clause 4 deals with penetration involving a child or a young person. New clause 5 covers penetration involving a child and an adult. The purpose of creating such new offences is to remove penetration involving under-16s from the offence of sexual touching, so that sexual touching can be decriminalised for children in certain circumstances, without impacting on the age of consent. 
 The amendments do not cover oral sex and penetration with other parts of the body or objects. The idea is to create a coherent argument throughout the Bill, which could be supplemented. There would be 
 much scope for further development. New clause 5 defines the ages between 13 and 16, and would make it clear that the age between 13 and 16 is 13, 14 or 15. That detail is included in several other clauses. The new clause would add clarity to the Bill. 
 The amendments would avoid unnecessary criminalisation of usual behaviour, many examples of which were referred to this morning. The children's associations that have helped to draft the amendments are absolutely committed to protecting younger children from inappropriate sexual activity. They would introduce an age proximity test. It is almost impossible to come up with a hard and fast rule but, as we know, several people who work co-operatively with those within the organisations that have specific knowledge of such matters have made a specific suggestion. 
 Clauses 10 and 11 would be amended so that over-18s were liable only for offences with 13 to 16-year-olds—a theme that is followed throughout the amendments.

Dominic Grieve: I may have interrupted the hon. Lady too early, but I was interested in the fact that she has chosen to amend clause 11 as well as clause 10, because the two things that are being aimed at in those clauses are different, and there might be an argument, which I shall try to develop, in favour of confining one's attentions to clause 10.

Annette Brooke: I thank the hon. Gentleman. This approach is intended to make the overall distinction between under-18s and over-18s throughout this part of the Bill—which involves the question whether clause 14 is necessary. There is a logic to this.
 If I remember rightly, the example has been given of two teenagers looking at a pornographic magazine. Most parents would agree that one should not get too worked up about such behaviour. We keep coming up with examples, which I was trying to avoid. We should stick to the principles. 
 It is unnecessary to read out all the amendments in full. I have outlined the general principles of this approach. If any hon. Members think that there is a different way of tackling the clause 14 problem I should be interested to hear from them.

Dominic Grieve: The hon. Lady's amendments cover an important area, and this is the right time to debate the principles of her approach. Notwithstanding that I have carefully read her amendments, for reasons that I will explain later I have a preference for my amendment No. 132, but that point involves drafting issues, and we should now discuss the generality of the matters that are to be considered with regard to this part of the Bill.
 As I said this morning, the problem that we have as we move on to address children between the ages of 13 and 16 is that we are much more aware that, as part of the normal development process, many of them will engage in sexual activity. The statistics show that by the time that they have reached their 16th birthday the 
 majority—certainly of those who have been surveyed—have had full sexual intercourse: the average age at which they begin to do so is 15. Therefore, I have always accepted that different criteria could properly apply to this area than to that which involves children under the age of 13. 
 We must apply our minds to this key difficulty: if we are to decriminalise any of these activities, every time that we look at each of these clauses, we must think of a worst case. We must be satisfied that in a case that would fall within the exception but which some people might nevertheless consider to be unpleasant we are comfortable with the idea that it should be decriminalised. 
 We can start from the first premise that anything that is not consensual should be banned. That clearly applies as much to adults as it does to children. Then the question arises: is there any category of activity within those which have been identified and targeted in this Bill which is of such an order that it is pointless criminalising it for those aged between 13 and 16, and if so with whom should it be decriminalised? Should it apply across the board to any adult, or should it be restricted to persons of their own age or roughly their own age? 
 I start from this basic principle: there is only one category that could be decriminalised, which is straight sexual activity through touching. Having thought about this matter, I find it difficult to see—if anyone disagrees, I would be happy to listen to them—how we could sanction full sexual intercourse because, if we were to do that, it would raise enormous problems in terms of the exceptions where someone wants to enforce the law because it is clear that there has been exploitation and seduction. 
 On the other hand, I have always felt that clause 10 is fairly draconian; that is the clause that, allied with clause 14—when one takes the two together—criminalises what were described as ''behind-the-bike-shed'' activities. Let us suppose that no criminal offence is committed; someone aged between 13 and 16 engages in behind-the-bike-shed activities with someone of the same age, or, as I suggested in amendment No. 132, within three years of that age. It would be possible for an 18-year-old to have sexual touching with a 15-year-old, and a 13-year-old to have it with a 16-year-old. 
 I must tell the Minister: as I thought the matter through, it seemed to me that that might be a possible solution, thus potentially earning me the magnum of champagne from the Home Secretary. I would be interested to hear from the Minister what cases within that restricted example would cause the Home Office anxiety because it would wish to prosecute. 
 Let us take some worst-case examples. We have to face the fact that, notwithstanding the fact that we are rightly removing any homophobic elements from the Bill, many people regard heterosexual and homosexual activity as very different in their nature and quality. We have to face the fact that the amendment would allow two boys or two girls to engage in sexual activity with each other involving sexual touching and mutual masturbation, for example. 
 However, can it really be said that, where such a case involved a 16-year-old and a 13-year-old or an 18-year-old and a 15-year-old, it would be likely to lead to prosecution? I have difficulty in envisaging the circumstances where a prosecutor would feel that that was necessary. I would be interested to hear from the Minister why he thinks it is necessary to have the crime so starkly on the statute book and not to make such an exception. 
 One has to face the fact that—as it seems to me, and it is probably common ground between everyone present—the consequences of sexual touching, short of penetration, are in physiological terms fairly innocuous. It is difficult to see that any serious consequences may flow from it. Obviously there are emotional consequences, and the emotions of teenagers at the best of times tend to be fairly topsy-turvy, but that must be balanced against the prospect that, in the restricted circumstances that I have described, someone will think that it is in the public interest to prosecute one of the participants. That is the issue that I should like the Minister to address. 
 Our own amendments have suggested that the same thinking might be applied to other activities in clauses 11, 12, 13 and 14; I should like us to consider that as well. However, curiously enough, I can see a greater objection—this was the point that I made to the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke)—because a 16-year-old inciting a 13-year-old to engage in sexual activity with someone else is quite worrying; that is a very undesirable state of affairs. I do not think it is an undesirable state of affairs if two people, unincited, who happen to be 14 and 15, wish to engage in sexual touching, either behind the bike sheds or anywhere else. I wonder whether the Committee should be focusing on clause 10, because that is the clause to which it is most likely that we can make a decriminalising amendment without causing all sorts of knock-on problems. That is my suggestion for our consideration, but I shall be interested to hear what others have to say.

Paul Goggins: I will not repeat this morning's arguments or their details, but will try to address the specific issues relating to the amendments. I begin by pointing out again that as soon as we try to differentiate one kind of sexual activity from another, or to differentiate in terms of age, we immediately hit a degree of complexity.
 The hon. Member for Beaconsfield (Mr. Grieve) spoke about full sexual intercourse as something that we agree is not acceptable between children under 16. He went on to refer to sexual touching, and made it sound mild and innocent. I think that the phrase he used was ''fairly innocuous''. We can all imagine examples of sexual touching that would be fairly innocuous—a young boy placing his hand on a young girl's breast, for example. That might fit into the behind-the-bike-sheds category. However, if a naked adult touched a naked child with any and every part of his body, that would be sexual touching, although it may stop short of penetration. I am sure Committee members agree that that is a lot more serious than the 
 first instance. As soon as we begin to say what sexual touching means, we find that it means a lot more than can be explained with just one example, and we see the complexity of the argument. 
 The hon. Member for Mid-Dorset and North Poole opened our discussions this afternoon. Her new clauses 5 and 6 would differentiate between penetrative and non-penetrative activity. I perfectly understand her motive for introducing the subject in Committee, and I accept that there is a greater incidence of adolescents under 16 engaging in non-penetrative behaviour than there is of adolescents engaging in penetrative sexual acts.

Paul Beresford: For the sake of my political career, I really should not do this, but I am supporting the Minister again. A colleague of mine is a senior psychiatrist specialising in abused children, and she regularly appears in court on either side of a case. Her comment on penetration and the reference in much legislation to the word ''vagina'' is that it is, as she puts it, about half a centimetre too late. She says that girls at a certain age, who can recognise what is happening but not do anything about it, are as severely damaged by such behaviour as by penetration. So, regretfully for my political career, I am supporting the Minister.

Paul Goggins: Once again, I am grateful for the hon. Gentleman's support, and I wish him well in his political career.
 Returning to new clauses 5 and 6, the penetrative activity that would remain criminal behaviour under the amendments is restricted to penetration by the penis of the mouth, anus or vagina. That suggests that other sexual activity that falls short of penile penetration should be decriminalised for offenders under 18. That would mean that it was not an offence for a person under 18 to engage in sexual activity with a child under 16. That could involve, for example, the older child penetrating the anus or the vagina of the younger with an object of some kind. Straight away we can see a deficiency in the hon. Lady's new clauses, as they leave out significant and substantial matters.

Annette Brooke: I did briefly say that we did not include oral sex or penetration with objects to keep the new clauses as simple as possible—we thought that they were complex enough as it was. However, if the Minister thought that there was something to our approach, other provisions could be worked into the new clauses.

Paul Goggins: I again acknowledge the hon. Lady's honourable intentions, but my argument holds; as soon as one tries to introduce greater clarity, one introduces greater complexity. Although I accept that the hon. Lady has tried her best not to confuse things, there is still confusion. The kind of penetration that I described could be extremely damaging and serious, but it is excluded from the offence that the hon. Lady is proposing. I offer that as a consequence—perhaps a shortcoming—of her amendment.
 Under the hon. Lady's proposal for a comprehensive assessment by the youth offending team, the notification requirements under part 2 should apply to children only after a risk assessment. 
 I do not want to take up more time dealing with those matters, because we discussed them this morning and earlier in the week. Procedures for dealing with young sex offenders already take into account their age and maturity and the individual circumstances of the case. That applies at all stages in the criminal justice system, from investigation to possible prosecution, through to court and final sentencing. The age of the offender is always taken into account. 
 We believe strongly that the notification requirements should flow directly from the nature of the offence committed. We accept that in all but the most serious cases children should and will be subject to the registration requirements for only half the period applicable to an adult convicted of the same offence. It is not necessary to put in statute that the age difference between the offender and the victim should be taken into account when sentence is being determined. Account is taken of an offender's age all the way through the criminal justice system. 
 I have listened carefully to the arguments of the hon. Lady and the hon. Member for Beaconsfield. If they are still not persuaded by my argument after our discussions this morning, I hope at least that they are increasingly persuaded of the fact that we have tried to consider whether such things could be incorporated in the Bill. Frankly, however, any compromise that introduces more complexity puts at risk our central determination to provide protection for children.

Dominic Grieve: When speaking to amendment No. 132, I shall consider one possible option, which I outlined earlier. The Minister has no difficulty persuading me or anybody else that there are limits and difficulties to making exceptions. By doing so, one allows for all sorts of rather horrific things to be decriminalised. I understand that there may be circumstances in which the prosecutor will undoubtedly exercise his discretion not to proceed. However, my broad conclusion is that to provide an exception for sexual intercourse or penetration, whether by the penis or by an object, of vagina or anus, is impossible. If somebody comes up with another idea, I am prepared to consider it.
 I was, however, struck by the Minister's example of sexual touching. He said that that could be much more than fondling a breast behind the bike sheds. It could involve two people touching every part of each other's body. The exception that I suggested could apply to cases involving a young person aged between 13 and 16, if there were a three-year age difference between that person and the person doing the act, or if two such young people were doing it to each other. The Minister says that that could be a horrible set of facts—it is certainly a set of facts about which people might be concerned. Those who want their children to be protected from excessive sexual activity before they reach the age of 16, or even beyond it—many families do—may find that thoroughly undesirable. However, in terms of consequences, there is an enormous difference between that and penetrative sexual activity. 
 I wonder what examples from the past 10 years the Minister can give of cases in which there has been full consent on both sides but a prosecution has been 
 brought, against, for example, a 15, 16, or 17-year-old for having engaged in sexual activity not involving penetration or full intercourse. I suspect that there have been hardly any such cases—I would be amazed if there had been, especially if the case did not involve bodily harm on the other person. I would, however, be interested in seeing those statistics, if the Minister can provide them. 
 I admit that such activity covers a wide spectrum, but do we wish specifically to criminalise, or might we want to make an exception? If we decriminalise such activity, we will have to live with the consequences of our actions. We would have to accept that, in cases of a 16-year-old taking a 14-year-old to bed and engaging in a huge amount of sexual touching, but no penetration, there would have been no offence. If that was all that happened, should prosecution take place? However undesirable we think such activity might be, I am a little surprised that it would warrant a prosecution. 
 If the Minister can provide facts or write to me with some illustrations and examples of when sexual touching alone has been thought to be so serious that it merited prosecution, I am willing to be convinced of such matters. However undesirable I may consider such activity to be, I am not persuaded that the force of the criminal law is necessarily required when the age difference is so small. I accept entirely that it would be a different matter if a 35 or 40-year-old performed such activity with a 13 or 14-year old, because that would constitute a paedophile assault. That is precisely why the only circumstances that could be permitted are those relating to people between whom the age difference is very small. I have suggested three years, but if a member of the Committee comes up with another formula, I am willing to consider it. We could have a difference in age of two years. 
 Has prosecution taken place when the age difference is so small? If so, what aggravating features persuaded the prosecutor make such a decision? It would be interesting to know what penalties are imposed in such circumstances. It seems that they would be towards the lower end of the scale. That said, I accept that the alternative approach is to follow the Minister's suggestion and give the prosecutor discretion—the world will not come to an end if such action is taken. However, it would be nice to legislate with a firm understanding of such matters, so that we can justify our action if we are challenged about it.

Paul Goggins: I shall respond briefly. At present, I am not able to give the hon. Gentleman the information about how many cases there have been. I am interested in the matter and I shall look into it. I caution him and other members of the Committee, however, that indecent assault currently covers non-penile penetration and other non-penetrative activities; it does not differentiate between the two. None the less, I shall write to the hon. Gentleman about the matter.

Dominic Grieve: The Minister has touched on an important issue that illustrates the problem of indecent assault covering such a wide spectrum.
 There is a world of difference between ordinary sexual touching and oral sex, for example. Most people outside this place think so, too. For the first time, we have an opportunity to make that differentiation.

Paul Goggins: We do, but we must be careful when making such a distinction. As I have said, the more we try to draw distinctions, whether in terms of activity or age, the more problematic things become.
 I shall be interested to find out how many prosecutions there have been, but whatever the number, we are legislating now. I advanced the proposition that such offences are possible and I agree with the hon. Gentleman that the activities are not acceptable. In the light of that, we should create the offence and leave it to the prosecutor to decide, with guidance, whether it is in the public interest to bring the case to court. In that way, we combine good legislation with sound common sense and public interest.

Annette Brooke: I should like to reflect on some of the points made by the hon. Member for Beaconsfield. I agree with what he says; that is probably because of my age, rather than anything else.
 The linkage between clauses 10 and 14 is the priority area, and arguments have been put forward strongly for sorting out under-18-year-olds and over-18-year-olds throughout the clauses. I should like to introduce a cautionary point into the strong argument made by the hon. Gentleman. If it were thought to be right to condone heavy petting but heavily criminalise anything else, youngsters might not seek birth control and other advice. They might not think that they would go on to act in a criminal manner, although of course they might once they were in a situation to do so. 
 There is a lot more teasing out to be done on that point, because we are putting people who may become very involved in the activity that they are undertaking at risk of their own actions. I hope that our discussion on the amendments is useful; it is teasing out some points. 
 I was reflecting also on a point that the hon. and learned Member for Redcar (Vera Baird) made this morning about not wanting to put someone in court to justify that there was no consent at the age of 12. There is a balance. There is concern that young people may be put in a criminal situation because of the way the legislation is phrased—I am particularly thinking of the impact of clause 14—yet every time we try to do something about that, we end up implying that they will end up in court. The justification for leaving the legislation as it stands is that most such cases do not get to court anyway. I am wondering whether we need to be as concerned about that. I suppose I am asking which situation is more likely to end up in court. I just thought of that over lunch; I am sorry, I was not very quick-witted, but the matter is not in my legal frame.

Vera Baird: Another point that I sought to make this morning, although perhaps I did not articulate it well enough, was that I would not have thought it a bad principle to introduce into criminal
 law the notion that a sub-13-year-old can consent, because that may have all sorts of knock-on effects in defending other kinds of case. That was a sub-text in what I said.

Annette Brooke: I thank the hon. and learned Lady for that.
 The Minister responded to some of the new clauses in the group. If I deal with them now, it will save us time later. Yes, there is repetition of some of the points that we have discussed already, but the amendments not only clearly lay out that under-18-year-olds should be punished with different levels and types of sentences, but relate to the need for a full, multi-disciplinary assessment. 
 The amendments refer specifically to youth offending teams. I mentioned that on Tuesday, but because I said it, rather than putting it in the amendment, I did not get a response, so I shall make that point again. The need for a full multi-disciplinary assessment, particularly in relation to the younger age group, is so important. I am interested to hear that the Minister is so enthusiastic about the Manchester project he has recently visited. What steps can be taken to ensure that such provision is available across the country? That is not an aside, because the subject is integrated into the amendments. 
 There is desperate need to identify problems at an early age, and ensure that they are acted on and treated before we get into worse situations. Certainly, after last night's presentation, it seems clear that it is crucial to identify problems and to take action as early as possible. We can visit such wonderful projects—as well as that in Manchester, there is a smaller one in Dorset—but we need to know that there will be a national programme to tackle such issues. 
 I hope that the amendment has drawn out more useful discussion and further food for thought and that we will continue this debate, because we need to find a solution. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No. 137, in
clause 10, page 4, line 21, at end insert 
 'causes B harrassment, alarm or distress and'.

Win Griffiths: With this it will be convenient to discuss the following:
 Amendment No. 138, in 
clause 10, page 4, line 25, at end insert— 
 '( ) a person does not commit an offence under subsection (1) if— 
 (a) the sexual activity is consentual; 
 (b) the sexual activity does not involve penetration of the mouth, vagina or anus, and 
 (c) A was in a pre-existing relationship with B prior to reaching the age of 18 and their sexual activities were not considered a sexual offence under section 14.'.
 Amendment No. 132, in 
clause 10, page 4, line 27, at end add— 
 '(3) Conduct by A which would otherwise be an offence under this section shall not be an offence if. 
 (a) B is aged between 13 and 16 and A is no more than 3 years older than B. 
 (b) B has the capacity to consent to that conduct. 
 (c) B does consent to that conduct. 
 (d) the conduct does not involve penetration. 
 (4) B will be regarded as having the capacity to consent to conduct by A only if B is capable of understanding the nature and implications and reasonably foreseeable consequences of such conduct.'.
 Amendment No. 140, in 
clause 14, page 5, line 33, at end insert 
 'unless 
 (a) the sexual activity is consentual; 
 (b) the sexual activity does not involve penetration of the mouth, vagina or anus, and 
 (c) there is no significant difference in the age or mental or physical maturity of the persons involved. 
 ( ) A person under 18 commits an offence if he does anything that would be an offence under sections 11 to 13 if he were 18'.
 Amendment No. 141, in 
clause 14, page 5, line 33, at end insert— 
 '(1A) Notwithstanding subsection (1) it is a defence for offences under sections 10 to 13 and 15 in respect of a complainant who is 10 years or more but under the age of 16 where the complainant consented to the activity and the defendent is— 
 (a) 13 years or more but under the age of 18, 
 (b) less than two years older than the complainant, and 
 (c) is not in a relationship of dependency. 
 (1B) No person aged 10 to 13 shall be tried for an offence under sections 10 to 13 and 15 unless the defendent is in a relationship of dependency with the complainant.'.
 New clause 7—Pre-existing sexual relationship— 
'(1) Conduct by a person (A) which would otherwise be an offence under section 10 against another person (B) is not an offence under that section if, immediately before A turned 18 years, a consensual sexual relationship existed between A and B. 
 (2) Subsection (1) does not apply if at that time sexual activity between A and B would have been unlawful. 
 (3) In proceedings for an offence under any of section 10 it is for the defendant to prove that such a relationship existed at that time.'.

Humfrey Malins: I shall speak only briefly about amendments Nos. 137 and 138, and my hon. Friend the Member for Beaconsfield will speak to other amendments in this group.
 All hon. Members know the problem that we are addressing because we have identified it. We are now trying to find a way through it. With regard to amendment No. 137, I ask the Minister whether there is any fundamental objection to the clause being amended in that way. I am addressing the situation of a person aged 17 having a relationship that falls short of full sex with—if it is a man—a girl whom he knows to be 15. He might have known her or been friends with her for some time. They form a relationship that involves sexual touching. We have all been round and round the arguments about whether that should be a criminal offence—whether the person should be questioned, warned, subject to guidance and so forth. 
 What if the clause were amended to read as follows: 
''A person aged 18 or over (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual, and''
 it causes the other person 
 ''harassment, alarm or distress''? What is the objection to that? I pulled the phrase straight out of public order legislation. It is a common legal phrase. It covers a recipient of those attentions who finds them unwanted—they cause her ''harassment, alarm or distress''—but it also offers protection for what we loosely referred to as a genuine relationship. All I need from the Minister is an answer to this question: is there a legal problem with my amendment?

Neil Gerrard: I understand the hon. Gentleman's point. However, at the Metropolitan police presentation yesterday evening, which I think he attended, a point was made about the difficulty of dealing with cases where a child who was being abused did not regard the attention as unwelcome and did not understand that what was happening was not normal.

Humfrey Malins: I recall that point being made. The hon. Gentleman is right, which is why my amendment might not be right. Incidentally, it was drafted well before I attended that presentation, after which I might have been wiser. However, I am dealing with someone who is 15 and over as opposed to 13, so my arguments might apply to some extent. All I need to know from the Minister is this: if he does not like the amendment, why does he not like it—what are the principal objections to it?
 My amendment No. 138 was, effectively, proposed by Brook, which is the country's leading provider of free, confidential sexual health advice and contraception to the under-25s. It is fair of me to table it, on the basis that it might be a helpful way forward. It is linked to an amendment to clause 14. If it is not a helpful way forward, the Minister will undoubtedly tell me. I look forward to hearing from him.

Dominic Grieve: I shall try briefly to look at the other amendments. As I said earlier, I see amendment No. 132 as the key amendment—particularly in light of the last group. I should like briefly to speak to that and to explain it, although the Minister will then tell me that it is flawed for a series of procedural reasons that I had not previously understood.
 Rather than considering clause 14, which provides for a different sentencing regime for a person under 16—different from that for persons over 18—in relation to the offences in clauses 10 and 13, it is easier to focus on clause 10, which deals with sexual touching, and, having accepted that that could be an offence as defined in that clause, provide an exception there. I shall read my amendment to show how narrow the scope of the exception would be: 
''Conduct by A which would otherwise be an offence under this section shall not be an offence if.
(a) B is aged between 13 and 16 and A is no more than three years older than B.
(b) B has the capacity to consent to that conduct.
(c) B does consent to that conduct.
(d) The conduct does not involve penetration.
 I hope that paragraph (d) is sufficient to cover my wish to exclude penetrative sexual activity. The amendment continues: 
''B will be regarded as having the capacity to consent to conduct by A only if B is capable of understanding the nature and implications and reasonably foreseeable consequences of such conduct.''
 For example, that would prevent the exploitation by a 15-year-old boy of a 13-year-old who might have some degree of learning disability. I suggest to the Minister that, in view of all the problems he has correctly identified, that will probably be the high point of my attempt to get the Home Secretary's magnum. 
 It would be useful to know the circumstances in which a prosecution would currently be brought within those defined criteria. I suspect that it will turn out to have happened hardly ever, if at all. Although I shall not press the matter to a vote, we may have to come back to it on Report. My amendment would still provide adequate protection against paedophiles—older people preying on the young—and would continue to provide protection for those aged between 13 and 16 who, for whatever reason, do not have the capacity to consent because they do not understand the nature and quality of the acts in which they are engaging. It confines the exception to the activities of two people together, whether boy and girl, girl and girl, or boy and boy. 
 I have not sought to affect clauses 11, 12 and 13. That may seem a bit strange. Some people might think that causing a child to watch a sexual act is less serious than sexual touching, but I am not sure whether I agree. One appears to have a natural origin, whereas I sometimes think the other involves witnessing scenes that are far more depraved and unpleasant than the activities in which two people would reasonably and normally get up to.

Chris Bryant: I rather agree with the hon. Gentleman about that, not least because bullying may lead, particularly in boys' schools, to boys forcing boys to watch other boys do things. That is not entirely unknown—and it is just as cruel and vindictive an activity as anything else.

Dominic Grieve: I think the hon. Gentleman may have misunderstood what I said. I was saying that the amendment would not legalise somebody being forced to watch something. Perhaps I have misunderstood what he said. I shall try to deal with what he possibly meant, which is that somebody may be bullied into consenting to sexual activity. In that case, they would not have given consent. I accept that it may sometimes be difficult—this is a legitimate and important point—to persuade somebody who has been bullied into consenting to sexual activity to admit that that is what happened.
 We know that, in the context of sexual activity between adults—the hon. and learned Member for Redcar has raised the point in relation to rape cases—it is often difficult for somebody to come forward and to state that they were bullied and coerced into doing something that they did not wish to do. There, I think, the hon. Gentleman has a good point. That is an evidential problem, which is likely to exist in most circumstances. I accept that it might be possible to 
 have evidence other than the evidence of the victim, but one certainly needs the evidence of the victim if one is to mount a prosecution on the basis that consent did not occur. 
 This is the only possible loophole that I can think of that would allow us to deal with the Home Secretary's difficulties. He was plainly anxious about criminalising what he regards as perfectly normal adolescent activity. I accept that there are possible downsides but I hope that the Minister will look at the matter seriously, if not today, then perhaps we can come back to the matter on Report.

John Randall: I apologise to the Committee because I was unable to attend the full sitting this morning.
 I congratulate my hon. Friend on getting very close to something that might be acceptable. I understand the problem and I think that the Committee is gradually making progress towards resolving it. I would not run to a magnum of champagne, but perhaps a can of lager from Uxbridge. 
 I still have a problem with the whole idea. I understand the problems, but the issue must be resolved; there will be great concerns about it, not only within the Committee but outside it. Has the Minister had any conversations with the Department for Education and Skills about what guidelines it would give on sex education with regard to those under 16? Will those giving sex education be telling people that certain touching is officially a crime, but that people will be all right up to a point? Or would those teachers be in danger from a parent, perhaps more prurient than others, saying that their child has been told that touching is okay, even though it is a crime? I am wondering how the Department for Education and Skills would get around the matter. Before I can sit down and be happy that we have tried our very best, I would like to know what has been happening on that point.

Vera Baird: I had not intended to say much today, but I am driven to my feet by a craving for champagne. I worry a little whether I have understood the position properly. I think that the position is that if someone aged between 13 and 16 is raped by someone not much older than them, there will be a defence of consent. If I have misunderstood that, I am pleased to have that corrected.

Dominic Grieve: No, no; indeed not. I have specifically drafted amendment No. 132 to relate to sexual touching without penetration, which is why it is provided for in the amendment. It would not cover rape or any form of penetrative sexual activity at all.

Vera Baird: I am grateful for that, but what would prevent a defence of consent in the Bill to the rape of someone aged between 13 and 16? I ask that rhetorically. [Laughter.]

Win Griffiths: I call Paul Goggins to answer that rhetorical question.

Paul Goggins: I will either have a conversation with or write to my hon. and learned Friend.
 My overall observation returns me to a comment made by the hon. Member for Beaconsfield during a very passionate defence of the importance of the age of consent. The more we try to change the lines regarding age, no matter how reasonable it may appear on paper, the more problematic it becomes. Inadvertently, our efforts to win the champagne may send out an unfortunate message from this House regarding the age of consent. It is important that we hold that as a backdrop to the debate. It is central that we offer that protection. 
 The hon. Member for Woking (Mr. Malins) asked why there would be any problem in adding the phrase, 
''causes B harassment, alarm or distress''.
 I think that my hon. Friend the Member for Walthamstow (Mr. Gerrard) answered that question, in part at least, very well indeed. Perhaps because the child has been abused, perhaps for other reasons, that activity may not be seen by them as causing that harassment, alarm or distress, but it is not defensible in any way whatever and needs to be caught by the Bill. 
 The hon. Member for Woking asked me gently to respond to the other part of the question, to which I say the following. Clause 10 applies to offenders over 18, so I give him the scenario of a 50-year-old engaging in sexual intercourse with an 13-year-old where the prosecution have to prove that there has been harassment, alarm or distress. They will have to prove in court the issue of consent causing more distress for the child involved. 
Mr. Malins indicated assent.

Paul Goggins: The hon. Gentleman nods. That is a sound argument showing why his helpful and constructive suggestion would not work.
 The hon. Member for Beaconsfield asked me again about prosecutions. I promise to get back to him on that. I hope that there are not many. None of us wants to think that such cases occur in great numbers, but we would want prosecutions to happen where appropriate. I return to the combination of good, solid legislation coupled with sensible guidance, which gives us good law and common sense in practice. 
 The hon. Gentleman asked me further about issues relating to lack of consent. I give him the example of an adult—I will not put that adult in a position of trust—on whom the child has what used to be called a crush, to the point where sexual activity is taking place. That child feels that she loves that individual and will want to protect him, and will not give evidence against him. We have a scenario where a child is placed in the position of having to give evidence to prove the case for the prosecution, which is totally unwarranted. If we move those goalposts we hit the problem that in order to prove the case we have to put children in distress and question their consent. I put it to the Committee that as soon as we try to add greater clarity to the provision, we actually introduce more complexity.

Humfrey Malins: It has been an interesting debate. There will be more interesting debates later this afternoon. I
 am grateful for the Minister's response. It may be that my hon. Friend the Member for Beaconsfield would like to intervene to make a few comments. It will fall to me in a moment to ask leave to withdraw the amendment. I do not do so yet in case others wish to make concluding remarks. I believe that they do not. Having had a good debate, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Annette Brooke: I beg to move amendment No. 160, in
clause 10, page 4, line 26, leave out from 'offence', to the end of line 27 and insert— 
 '(a) under subsection (1)(c)(i) of this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years, 
 (b) under subsection (1)(c)(ii) of this section is liable— 
 (i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; 
 (ii) on conviction on indictment, to imprisonment for a term not exceeding 7 years, 
 (iii) in determination of the sentence, consideration must be given to the age differential between A and B. 
 (3) A person aged below 18 years at the time of the offence— 
 (a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or youth offending team, 
 (b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Win Griffiths: With this it will be convenient to discuss the following:
 Amendment No. 139, in 
clause 10, page 4, line 26, after first 'on' insert— 
 '(a) summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;'.
 Amendment No. 165, in 
clause 11, page 4, line 38, at end insert— 
 '(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable— 
 (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; 
 (b) on conviction or indictment, to imprisonment for a term not exceeding 7 years. 
 (4) A person aged below 18 years at the time of the offence— 
 (a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or Youth Offending Team. 
 (b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.
 Amendment No. 168, in 
clause 12, page 5, line 14, at end insert— 
 '(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable— 
 (a) on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both; 
 (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years. 
 (4) A person aged below 18 years at the time of the offence— 
 (a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or Youth Offending Team, 
 (b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.
 Amendment No. 171, in 
clause 13, page 5, line 30, at end insert— 
 '(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable— 
 (a) on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both; 
 (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years. 
 (4) A person aged below 18 years at the time of the offence— 
 (a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or Youth Offending Team, 
 (b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Humfrey Malins: I shall speak to amendment No. 139. I will take some persuading that the amendment is not acceptable. The more I think about it, the more compelling I find it. Under clause 10, the position on punishment is as follows: the offence, which may vary in severity from a minor offence to a very serious one, is triable only on indictment. That is significant. To draw a parallel from the magistrates courts, there are many offences that are triable only summarily. They are minor offences, such as careless driving. Other offences are triable only on indictment, because of their extreme severity. They can be tried only by a Crown court, not a magistrates court. Such offences include murder. Other offences, such as theft, are triable either way. A low-level theft can be tried in a magistrates court, which has the power to give a statutory fine or six months' imprisonment. If the theft is severe, it may be tried in the Crown court.
 For the life of me, I can see no reason why the offence of sexual activity with a child should be regarded in every single case as so serious that it can be tried only in a Crown court. There must—I repeat, must—be examples in which the sentencing powers of the magistrates would be sufficient. Perhaps that would be so in most cases, or perhaps in some, but there must be some cases. Surely it cannot be right that every single allegation under this clause would be deemed suitable to be tried before a jury. Remember that the position in a magistrates court, after the person is arraigned, is as follows: if the Crown thinks that the either-way case, such as a case of theft, which can be tried in either court, is so serious that it can be tried only in the Crown court, it will say so and the magistrates will commit it for trial. There is no danger of terribly serious cases remaining in the magistrates court. 
 Surely we should retain the option—perhaps it would be used often, or perhaps occasionally—of trying such cases in a magistrates court. Why is the offence triable only on indictment, as opposed to summarily as well? Have I missed anything? If I am right, surely my amendment covers both situations.

Dominic Grieve: I am waiting in haste to hear the Minister, but unless I have misunderstood how statutes are drafted, my hon. Friend is absolutely right and clause 10 provides only for trial on indictment. If that is the case, that raises an interesting question. To jump back to my argument on the previous group of amendments, the suggestion is that only extremely serious cases will go to trial. That is probably not what the Minister intends. If a 17-year-old sexually touches a 15-year-old in circumstances—[Interruption.] Let us say that an 18-year-old inappropriately touches a 15-year-old and a prosecution is brought. There would be instances in which it would be possible for a magistrates court to dispose of such a case.
 The difficulty is that the phrase ''sexual activity with a child'', which has been drawn from the previous statutory framework, covers everything from consensual sexual intercourse with a 15-year-old, which is not rape, but is still a very serious offence if the other person involved is, say, a 35-year-old, right down to an 18-year-old having a snog behind the bike sheds with a 15-year-old. At the bottom end, there must surely be provision for a summary trial.

Paul Goggins: On first reading those clauses, one imagines some horrendous scenarios that would trouble us all. The penalties in the Bill reflect the sense of seriousness that we would feel. They are the maximum penalties, but none the less, the crux of the argument made by the hon. Member for Woking—whether trial could take place in a magistrates court or would have to be in a Crown court—deserves further reflection. If he will withdraw his amendments, I will undertake to give the matter further consideration, and either I will provide a compelling argument, or he may see something on Report that will give him some cheer.

Dominic Grieve: There may be an argument for considering the point in the context of clause 11 as well. As I said earlier, the circumstances outlined in clause 11 are on the whole likely to be more serious than the bottom end circumstances outlined in clause 10.

Paul Goggins: I acknowledge that the hon. Gentleman was intervening on me. If any other member of the Committee would also like to intervene, I will of course give way.

Hilton Dawson: I am grateful to my hon. Friend. Will he clarify whether a sentence on indictment could be for six months or anything up to the maximum sentence? The fact that the case could not be tried summarily does not preclude the possibility of a six-month sentence on indictment.

Paul Goggins: I made the point initially that 14 years is the maximum sentence available, so the sentence could be anything up to that maximum. Central to the argument advanced by the hon. Member for Woking was whether the case could be tried in a Crown court only. The argument is such that I need to reflect on it further. I need to provide a compelling argument as to why that should be available only through the Crown
 court for myself—and certainly for the hon. Gentleman. If there is strong merit to the argument, there will be something that might help him on Report.

Hilton Dawson: The charges are very serious. If proved, they will remain on people's records for ever. They will place people on the sex offenders register and prevent them from working in certain fields of employment for ever. Therefore, why should not people who are charged with those offences be given the absolute benefit of a jury trial?

Paul Goggins: I appreciate my hon. Friend's encouragement to resist the argument by the hon. Member for Woking.
 I return to the first point that I made in response to the hon. Member for Woking. On first reading the clauses, one immediately contemplates a horrendous scenario where something terrible has happened, and where that has happened one expects the book to be thrown at the individual responsible. If the maximum penalty of 14 years should be handed down, it should be handed down. 
 That is not the question that the hon. Gentleman poses, however. He asks whether it is possible that there is a scenario where that is not appropriate. In theory, it may be true; in practice, however, it may never, or seldom, happen. In many other parts of the Bill where other very serious offences and penalties are outlined, there is the possibility of a summary trial. In fairness, I should also consider whether that is appropriate in the matter before us. Notwithstanding that, my hon. Friend's comment about the seriousness of many such offences stands firm, and I stand behind that. The argument advanced by the hon. Gentleman is, however, worthy of further reflection.

Humfrey Malins: The hon. Member for Lancaster and Wyre (Mr. Dawson) makes an interesting point. To confirm the position with him, however, the magistrates court may give six months imprisonment, and the Crown court may give a conditional discharge or a £5 fine. They can go from the bottom end to the top end. It is wrong to include in the Bill the provision that only a judge and jury can try the case.

Hilton Dawson: Is the hon. Gentleman envisaging a situation where a charge as serious as this would have to be tried before magistrates, and the defendant would have no option?

Humfrey Malins: No. When an offence is triable either way, such as theft, the court hears representations from the prosecutor, who might say, ''This is such a serious case that we believe that your powers of punishment are not sufficient, and these are the reasons why.'' That case will go to the Crown court because it is too serious for the magistrates court. However, the prosecutor might say, ''This is such a down-market case that we think that your powers of sentence are sufficient,'' in which case the defendant has the option to go to the Crown court in any event—even for a small theft, for example, where the powers of the magistrates court are absolutely sufficient. There would be no injustice in the matter.

Dominic Grieve: My hon. Friend might agree with me that one reason why this matter has arisen is that indecent assault and unlawful sexual intercourse with a child between 13 and 16 have been rolled together. If the Government are worried that there might be cases in which unlawful sexual intercourse with a child aged between 13 and 16 would end up in the magistrates court, the solution is to split those things—to go back to the previous position, in which they were separate—so that one is triable on indictment only, and the other is triable either way.

Humfrey Malins: I hear what my hon. Friend says. He makes an interesting point.

John Randall: I know that this will expose my great ignorance but, for the clarification of the Committee, could my hon. Friend say who makes the decision about this? The prosecutor puts the case; will the magistrates decide?

Humfrey Malins: That decision is, in effect, a mixture. If the prosecution says that the offence is so serious that the magistrates' powers are not enough, the magistrates will make a decision based on the prosecutor's representations about whether the case goes to the Crown court, regardless of what the defendant wants. If it is a very minor case—the theft of a bottle of whisky from a supermarket, for example—and the prosecutor says it is so down-market that the powers of the magistrates court are entirely sufficient, funnily enough the defendant still has the right to go to the Crown court. However, when the allegation is serious, the court will make the decision.
 I am extremely grateful to the Minister and I do not want to say any more on the matter. We will not press the amendment to a Division, for obvious reasons. It is not the lead amendment, and we look forward to hearing the views of the Minister and his officials in due course. As the lead amendment in the group was tabled by the Liberal Democrats, it might be for the hon. Member for Mid-Dorset and North Poole to formally seek the leave of the Committee to withdraw it.

Annette Brooke: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 10 ordered to stand part of the Bill.

Clause 11 - Causing or inciting a child to engage in sexual activity

Question proposed, That the clause stand part of the Bill.

Paul Goggins: I shall be brief. Clause 11 introduces the offence of causing or inciting a child to engage in sexual activity and covers any situation in which an adult intentionally causes or incites a child under 16 to engage in any form of sexual activity, whether or not that is penetrative. That will not only cover cases where an adult makes a child engage in sexual activity—such as sexual intercourse—with them, but those where an adult makes the child engage in such activity with a third party, whether or not that party is a willing participant or another victim. The offence
 will also cover cases where the adult makes the child carry out a sexual act, such as masturbation or stripping, for the sexual gratification of the adult. That closes a gap in the law that was identified last year, when an estate agent caused two young girls to strip in his office and, regrettably, there was no offence with which he could be charged. The offence can also be charged when the adult incites the child to take part in sexual activity, even when the activity itself does not take place—such as when, thankfully, a parent intervenes.
 The prosecution shall be required to prove that the child is under 16. In cases when the defendant claims to have believed that the child was 16 or over, the prosecution will have to prove either that he did not hold such a belief or that it was not reasonably held. The provision concerning mistaken belief in age will not, however, apply when the child is under 13. 
 It is important to emphasise that we have no wish to interfere in the rights of an individual to engage in consensual sexual relationships within a lawful marriage. It is therefore the case that a defendant will not be guilty of the offence when he is lawfully married to the person under 16 and they are engaging in consensual sexual activity. The defence will not be available when the married person causes his or her child spouse to engage in sexual activity with another person. That marriage defence will, of course, apply only in relation to marriages that are contracted in another country where the legal age of marriage is below 16. 
 We take the firm view that it is the responsibility of every adult to have due regard to the criminal law and to place the well-being of a child above his own desires. The law should deal severely with any adult who knowingly causes or incites any child who has not reached the age of consent to engage in sexual activity. The protection of children should be at the heart of our legislation. The offence will send a clear message that any adult who causes a child under 16 to engage in sexual activity is committing an unlawful act and can expect to be punished.

Dominic Grieve: I welcome the clause although, as the Minister will be aware from my comments about clause 10, I wish to know whether the matter should be an ''either way'' offence, too. I appreciate that the act is different from sexual activity with a child, but we must face up to the fact that it will run across a spectrum of seriousness—from the 18-and-a-half-year-old who encourages his 15-year-old friend to have sex with his 15-year-old girlfriend to serious paedophile cases. Do we want that 18-and-a-half-year-old to be dealt with only in the Crown court? The Minister might like to consider that question.
 I had intended to reserve my comments on the marriage exception until we discussed clause 16, which covers such a provision under clauses 10 to 15. I want to put down the benchmark that I have serious worries about the marriage exception provision. Many members of the public will regard it as deeply offensive. Why is it necessary? I need to hear a clear justification. 
 I appreciate that we have no power to prevent people from marrying at much younger ages abroad than in this country, but I do not understand why that fact should compel us to accept behaviour in this country that would otherwise be regarded as criminal. If people were living in this country, having contracted the marriage abroad, I cannot for the life of me understand why they, exceptionally, should not comply with our laws, even if that might involve their not having sexual intercourse or sexual relations while they are here until one of the partners is aged 16 or over.

John Randall: I simply want to echo what my hon. Friend said. After listening to the Minister, I have grave worries. It sounds as though the protection that we would be affording children under 16 in this country would not necessarily apply to those in a legal marriage who have come from outside the country. I speak entirely as a layman, but the message will have to be relayed clearly outside so that people can understand why there is a difference under the legislation.

Paul Goggins: I understand why Opposition Members are responding to marriage exceptions. I felt that it was important to advance that argument, because it relates to clause 11 and other clauses. However, with the forbearance of the Opposition, perhaps we may leave discussion of the marriage exceptions until a little later in our business.
 I shall not comment on the scenarios proposed by the hon. Member for Beaconsfield, but I offer him the same assurance that I offered his hon. Friend the Member for Woking on the previous amendment. I accept the argument. If it applied there, it would also apply here. 
 Question put and agreed to. 
 Clause 11 ordered to stand part of the Bill.

Clause 12 - Engaging in sexual activity in the present of a child

Paul Goggins: I beg to move amendment No. 44, in
clause 12, page 5, line 3, leave out from 'it' to 'knowing' in line 4 and insert— 
 '(i) when another person (B) is present or is in a place from which A can be observed, and 
 (ii) '.

Win Griffiths: With this it will be convenient to take Government amendments Nos. 50, 56, 66, 80, 97 to 99 and 103.

Paul Goggins: Amendments Nos. 44, 50, 56, 66 and 80 redefine the offences relating to engaging in sexual activity in the presence of a child or a person with a mental disorder to include situations where the offender is in a place from which the activity can be observed and he believes that the other person is aware, or intends that that person should be aware, that he is engaging in the activity. The amendments are needed to close a loophole in the current version of clauses 12, 20, 34, 38 and 42. I am happy to acknowledge that that loophole was exposed during
 discussion in the House of Lords, where a commitment was given that that issue would be considered further. Hon. Members have already referred to the benefit of the scrutiny in another place.
 The clause covers a situation in which a person in, for example, the next room or in the garden of a house next door to a child's home engages in sexual activity, intending the child to see it, for his—the offender's—own sexual gratification. Clauses 20, 34, 38 and 42 share the same wording and consequently they are similarly amended. 
 Amendments Nos. 97 and 98 make minor, presentational drafting changes to clause 70, which deals with the interpretation of the provisions on voyeurism. Amendment No. 99 would remove from that clause the definition of observation, because the term is now, by virtue of amendment No. 103, included in clause 80 on general interpretation, which applies to the whole of part 1. It is therefore unnecessary to define it again. 
 Amendment No. 102 defines the word ''image'', which we shall deal with in a later clause, and No. 103 defines ''observation''. They ensure that the offences referred to above would include the observation of the sexual activity by means of an image created by, for example, a webcam or other remote viewing system. That will help deal with paedophiles and others who use technology and the display of sexual acts through the internet or mobile phones as part of their abuse of a child, or as preparation of the child for later abuse. 
 Some of the amendments are minor or presentational and others are more substantial. I hope that hon. Members have found my brief explanation helpful.

Dominic Grieve: I welcome what the Minister has done. I am grateful that he has taken on board the remarks made in the House of Lords. The amendments are undoubtedly a major improvement to this part of the Bill.
 Amendment agreed to. 
 Clause 12, as amended, ordered to stand part of the Bill.

Clause 13 - Causing a child to watch a sexual act

Paul Goggins: I beg to move amendment No. 45, in
clause 13, page 5, line 19, leave out 'a photograph or pseudo-photograph' and insert 'an image'.

Win Griffiths: With this it will be convenient to take Government amendments Nos. 47, 51, 59, 69, 85, 92, 100 and 102.

Paul Goggins: Some of the amendments will have a particular resonance for those Committee members who attended the presentation by the Metropolitan police yesterday. Amendments Nos. 45, 51, 59, 69 and 85 will ensure that any individual who shows a child or a person with a mental disorder or learning disability a cartoon, drawing or any other image of a person, whether real or imaginary, engaging in a sexual act is
 committing an offence. That extends the offence in clause 13, causing a child to watch a sexual act, which previously only included causing a child to look at sexual activity depicted in photographs or pseudo-photographs. The amendments were tabled in response to concerns raised by the police that paedophiles often show media other than photographs depicting sexual activity to children for their own sexual gratification. For example, they might show tracings of such photographs, cartoons or other kinds of drawings.
 The other amendments make similar changes to the offences corresponding to the behaviour described in clause 13, namely those offences in clauses 21, 35, 39 and 43 concerning abuse of trust and the protection of adults with mental disorders. Amendment No. 47 ensures that the marriage defence in clause 16—again, I emphasise that we will debate that at greater length later—uses the same term as the offences in clauses 10 to 14, to which it applies. Amendment No. 102 provides the definition of ''image'' on which the amendments rely. It includes moving or still images, however produced, and three-dimensional images. In the context of those offences, it will also cover images of imaginary people engaging in sexual activity, such as images created by computer graphics and cartoons. 
 Amendment No. 92 makes a minor consequential drafting amendment to the interpretation clause, clause 53, relating to child prostitution and pornography. Amendment No. 100 makes a minor consequential drafting amendment to clause 70, relating to the voyeurism offence under clause 69. Those amendments will assist the police in dealing with offenders who show such material, particularly to children, for their own sexual pleasure. Such behaviour may lead to a reduction of a child's natural barriers against engaging in sexual activity and forms a well recognised part of the process of grooming a child for abuse. We believe it right to extend that protection to vulnerable adults who may also be subject to abuse of that kind.

Dominic Grieve: I welcome the amendments. I recall visiting Scotland Yard about a year ago, prior to the briefing available yesterday to members of the Committee. I went there in the course of my then new job as criminal justice spokesman to discuss the issue of internet pornography. It was brought home to me that there was a serious difficulty in that although there was clearly a deep anxiety about photographs taken of children that clearly involved abuse, there was a volume of extremely unpleasant material that was simply generated by computer, but which still had the same capacity to corrupt, particularly when aimed at the young. The Minister has taken on board the views of the police, and has incorporated them into the clause, so that showing such material will be a criminal offence.
 It is striking that the Minister has decided that the provisions should be extended to vulnerable adults, and I welcome that. Perhaps it is dangerous to say so, but I suspect that all Committee members agree that that is a sensible course of action. However, it raises profound issues about child pornography. Such material is regarded as tending to deprave and 
 corrupt children and vulnerable adults, so it is noteworthy that we allow adults to be exposed to it to their heart's content, as long as the material is generated either by sexual activities between adults or—this is equally interesting—it involves visual images that may show sex between adults and children that are not photographs. 
 I am sure that the Minister is aware of that difficult issue, which worries the police but strays deeply into areas of civil liberties. I am quite satisfied that, in doing what he has done, the Minister is on the right side of the line. However, I cannot ignore the fact that my visit to Scotland Yard brought home to me that we have been somewhat complacent in our attitude to the large amount of material that does not fall foul of the law at present, but which is in fact extremely unpleasant and which can be used, as the Minister accepts, for even more unpleasant purposes. 
 Amendment agreed to. 
 Clause 13, as amended, ordered to stand part of the Bill.

Clause 14 - Child sex offences committed by children or young persons

Hilton Dawson: I beg to move amendment No. 11, in
clause 14, page 5, line 33, at end insert 
 ', unless such actions could be considered by a reasonable person to constitute ordinary, consensual adolescent behaviour.'.
 We have had an excellent debate, which seems to have lasted for a very long time. Frankly, my overwhelming feeling at the moment is one of relief that my own daughters are now well into their 20s. I am grateful to the three other members of the Committee who have put their names to the amendment and for the words of support for it that I have received from officials of the National Society for the Prevention of Cruelty to Children; from Rachel Hodgkin, who wrote the briefing from the Family Planning Association; and from officials of the Children's Rights Alliance for England. 
 This is developing into an excellent Bill. It makes a very strong statement about the importance that the Government and hon. Members of all parties attach to the issues. In that context, I strongly support the retention of the age of consent at 16. One of the best things that the Government have done was to equalise the age of consent at 16. Also, as I said earlier, I am very pleased with the concept that children under 13 are incapable of consenting to any sexual activity. 
 I am also pleased by the introduction of the offence of touching that is sexual, and I am happy with the definitions that are given in the Bill. The sexual abuse of children by other children is a very serious problem that was discussed earlier today. I do not believe that anyone is terribly clear about this, but the figures indicate that perhaps as much as 40 per cent. of sexual offences against children are committed by their peers. We must deal with that sorry statistic with openness and through education and the effective treatment of disturbed children, whether they are victims, offenders 
 or both, and we must have good services that are backed up by sound law. 
 In a broader context, I am concerned that too many children are losing out on their childhood. The pressure on children to engage in mock-adult behaviour and behaviour that is way beyond their years is immense and growing, and the current age of consent is under threat. How can it not be, when it is reliably reported in The Lancet and other places that 30 per cent. of men and 26 per cent. of women say that their first experience of intercourse occurred before the age of 16? Every Member of Parliament is concerned about the teenage pregnancy rate in this country. 
 Clause 14 effectively outlaws kissing for under-16s on pain of five years imprisonment. That is how young people see it, but I do not know about other hon. Members. I attended a spirited debate at the annual assembly of the United Kingdom youth parliament in July when young people were well informed and aghast at the implications of the clause. I am extremely concerned that it is deeply flawed and that it will bring the age of consent of 16 into total disrepute and undermine it. The young people to whom I talked at the youth parliament and those from my constituency who visited Parliament earlier this week could not believe that such a provision was even being considered by anyone in this House. 
 I am concerned that the clause will prevent young people who are involved in consensual relationships from seeking advice on contraception, how to handle those relationships and the emotional implications of deep relationships before the age of 16. I am also concerned that it will leave some young people more vulnerable to abuse because of the need for secrecy. Who could fail to recognise the potential for emotional blackmail of a vulnerable child who is emotionally attached to a domineering partner of a similar age and who cannot tell what is going on because she would not want him to go to prison for five years? We want openness, education, sound advice, counselling and support, and that should be based on effective law that is rooted in the reality of children's experience. Touching may be coercive, but it may be mutually agreed, experimental and normal. Young people develop in maturity and understanding at different rates and the response of parents, family and professionals to the challenges of young people's sexuality should be proportionate, supportive, sympathetic and helpful. 
 Some of the amendments that we have discussed today are complicated. The Home Secretary said that the conundrum is so difficult that he is prepared to offer a magnum of champagne to anyone who can solve it. I think that we have made it too complicated by trying to allow for the vast range of possible situations in the Bill. That is impossible and the Home Secretary's champagne is completely safe. 
 The amendment is not perfect, but it is on the right lines. It would introduce an appeal to the common sense and reason not only of the police and the Crown Prosecution Service, but of every parent of every teenage child, every teacher of every teenage child and 
 anyone who has contact with adolescents and is concerned about them. The amendment would not decriminalise anything. It would retain the backing of the serious sanction if and when it is needed, but it would set the matter out in a form that is understandable and explicable. It tries to strike the necessary balance between protection and allowing children to grow. If we over-protect children, we render them vulnerable. 
 My proposal would be understandable and explicable to young people and I think that we could make it acceptable to them. We need something clear and straightforward in the Bill. We need effective legislation to underpin a change of culture in this country. We need greater openness, understanding and sympathy for young people. We need a realistic point from which to promote a culture that says, ''Until you're ready, it's quite all right for you to say no.'' Amendment No. 11 would help to create that.

Vera Baird: I hope that I did not jump up too quickly; I thought that my hon. Friend was going to end his peroration. Although I sympathise with the reasons why the amendment was tabled, clause 14 applies clause 10, which is intended to include penetration, to under-18s. Despite his support for the age of consent staying at 16, if his amendment were made, it would appear to give a defence to somebody who penetrated an under-16. Did he intend the amendment to clash with the age of consent?

Hilton Dawson: Actually, it is what I intended. It is far too difficult for us to define different forms of sexual experience. We do not prosecute under-16s who become pregnant. If we are effectively to help young people who are involved in consensual sexual relationships, we must treat them decently. The response to any form of sexual experience for under-16s should not be condemnation, which is implied by clause 14.
 We should understand the position of under-16s. We should try to help, understand and assist them—we desperately want to protect them—but they must know that such behaviour is illegal. Such behaviour should remain illegal, and the age of consent should remain at 16. Unless we give the age of consent credibility, which is the purpose of the amendment, we will lose all the under-16s who are engaged in sexual relations. They should see that the Bill is a great attempt to protect them from sexual exploitation, and the implications of clause 14 are preposterous and potentially extremely damaging.

Dominic Grieve: I fully understand the hon. Gentleman's intention. Indeed, the intention is similar, albeit differently worded, to that of the amendment moved by the hon. Member for Romsey (Sandra Gidley) this morning and amendment No. 132, which was my attempt. The amendment is, of course, cast in a different way because it preserves the offence while leaving a saving provision to a jury that concludes that, despite the facts, there is no need to convict. Indeed, a jury would have the option not to convict because it is completely happy with what has been going on.
 I remember having a discussion at the Bar—not the Bar downstairs—with a barrister about criminal law. We were arguing that it might be possible to get rid of the criminal law entirely, so that people could do whatever they liked, but that if the prosecutor thought that what somebody was doing was wrong they could prosecute them and go in front of a jury, which would have three possible verdicts—that the activity was in order, out of order or totally out of order—and the person would then be dealt with accordingly. 
 The problem with the amendment tabled by the hon. Member for Lancaster and Wyre is that it raises the obvious possibility that the definitions are so loose that somebody who does some heavy petting in Lancaster might appear in front of a Lancaster jury and see it decide that the activity is in order, while a defendant in Norwich might appear in front of another jury for doing the same thing and, because of the flexibility, see that jury decide that the activity is out of order. I hope that the hon. Gentleman recognises that the degree of uncertainty that that would produce in relation to people's behaviour and conduct is such that the administration of justice would become very difficult. People would legitimately complain that they had a reasonable expectation that what they were doing was in order. They would ask why, suddenly, when they had read in the paper that the activity was held to be in order somewhere else, it was held to be out of order now that they were doing it. However, that is the flexibility that is envisaged. 
 I will listen carefully to what the Minister has to say on the subject, but I fear that, despite its attractiveness, the amendment would lead to enormous problems. We must either provide a definition of what is acceptable and what is not, or we must stick to what the Minister has proposed, which is that this entire category is unacceptable, without the saving provision. 
 Under the Minister's proposals, the protection to a defendant is twofold. The first is that the prosecution does not prosecute because it exercises its discretion not to do so. The second, which has always been present, is that even after conviction the judge gives an absolute discharge and says that he regrets that the prosecution brought the case and that he hopes that such a case never gets brought again, which builds a volume of case law on which the prosecutors subsequently exercise their discretion. 
 I hesitate over the hon. Gentleman's proposal, because it might not work.

Hilton Dawson: Part of my argument is that the reality of the situation is that, hopefully, there are many stages at which these issues can be dealt with long before they ever reach the police or the Crown Prosecution Service. Is it not every parent's experience that they are faced with the challenge of their young person saying, ''I want to do this because Fred's or Frieda's parents down the road allow them to do it''? Is not what we are facing adolescent sexuality, which is being challenged and subject to change?

Dominic Grieve: I accept that, but I am not convinced that the proposal should be incorporated into law,
 with the consequences that would flow from that for a person who gets things wrong. Somebody might be convicted even though they claim that they thought about the matter and they were absolutely convinced that what they were doing came within the category of ''ordinary, consensual adolescent behaviour.'' That is a difficult principle of law, and I do not know whether we should start going down that route. Law must have greater certainty than that.

Chris Bryant: I think that I agree with the hon. Gentleman. Does he not think that there might be a thoroughly reasonable or fundamentalist Christian who believed that it was extremely extraordinary for two young people of 15 to be kissing, or even holding hands, whereas two liberal-minded people living in Hampstead or Highgate might hold completely different views on that? If the law is unable to be specific enough, it will be difficult to direct a jury.

Dominic Grieve: Indeed, I think it would not be possible to direct a jury at all. On the basis of the amendment, the judge would simply have to ask the members of the jury if they as reasonable people thought the case was all about ordinary, consensual adolescent behaviour. That is a complete defence, and one would have to leave it to them.
 The proposal is attractive, but there will be people who rejoice because they get acquitted, and people who get convicted, who will feel upset and aggrieved because they will not understand it in the light of what they have done. I do not know what mechanism of appeal there could be. It would simply be a matter of the jury's view. I am wary of it. That is all I want to say on the subject.

Julie Morgan: I support the amendment tabled by my hon. Friend the Member for Lancaster and Wyre. I put my name to it because I support the spirit behind it. I accept that there may be a problem with what is ''ordinary, consensual adolescent behaviour.'' We all know what my hon. Friend means and where he is trying to get to. Although the amendment is not perfect, I support the spirit in which it was drafted.
 The message we give to young people is important and we must remember the high teenage pregnancy rate in this country. We must not give a punitive message to those young people who have become pregnant at an early age, and who we know engage in sex at an early age. The law as it stands clearly fails, because so many young people under 16 are pregnant. It is important that we give a message that we want to concentrate on young abusers in the Bill, and there is a significant number of them, as has already been said. They cause terrible anxiety and problems. In order to do that, we need to get rid of the concept that we are widening the net and drawing in behaviour that we know is ordinary and part of growing up.

Chris Bryant: I sympathise with the point that my hon. Friend is making. My difficulty is with the word ''ordinary'' that she has just used. Another word for ''ordinary'' is ''normal''. It is very difficult to use those words without attracting value judgments, which, unless we are prepared to include them in the Bill,
 would make it almost impossible for people to gain justice.

Julie Morgan: I accept my hon. Friend's point. The clause needs to be more specific. The spirit behind the amendment is something that my hon. Friend the Member for Lancaster and Wyre has put forward clearly. We need to reach out to young people. The words in the Bill must be understood by young people. I have had the sort of experience that my hon. Friend said that he had when he spoke to young people in the youth parliament. Their concern about this sort of development in the Bill is a worry. We ought to bear that in mind, and it is in that spirit that I put my name to the amendment.

Annette Brooke: I attempted to obviate the need for clause 14. When I was knocked down over that, I thought, ''Oh well, it is probably better to go down the simpler route.'' I now feel rather disillusioned.
 To return to the main principles, I think that clause 14 is very damaging as far as the way in which young people interact with society is concerned. We have to accept the culture of young people. I do not mean agony aunt columns in magazines, but the sort of magazines that they read, what they read about, the films that they are seeing and the books that they are reading. The clause does not match that at all and we owe it to young people not to give signals that everything that they do is wrong. I find it very worrying that we have had some exceedingly useful discussion and at times edged closer to a solution, but then the lawyers stand up. With all the struggles that we are having, I keep coming back to the point that we are reassured because not many cases will come before the courts if matters are left as they are, but every time we try to change them, a huge problem emerges about cases coming before the courts and how the law will be interpreted. 
 I would really like to find a solution to that problem. I wish that I had the skills, which I obviously do not, to find it. I just hope that we can keep working on it. We all had a mailing from a Mr. Bennion, which we did not have time to discuss and examine, so I do not know if there is anything in that that the civil servants will be able to consider. I support wholeheartedly every sentiment in the amendment, and I wish that we could find the way through.

Neil Gerrard: My hon. Friend the Member for Lancaster and Wyre and other hon. Members who have spoken are absolutely right to point to the clause as currently drafted as a real problem. In his amendment, my hon. Friend has tried to take a common-sense approach by looking at what actually happens. It fits in with the tone of a lot of the debate that we have had on this part. I agree with what he said on that sort of approach. I find difficulties with every one of the other solutions that have been suggested. For example, on the suggestion that involved three-year periods, we can think of 15-year-olds who could easily pass for 19 and 13-year-olds who we would not think were 10. There is only a two-year age gap there, but an enormous difference in maturity.
 The question is whether this common-sense amendment is legally workable. I understand what the hon. Member for Mid-Dorset and North Poole said about the lawyers getting hold of matters. On a previous Committee that I served on, I referred to the speech made to Jack Cade in Shakespeare's ''Henry VI'', which no doubt some hon. Members will be familiar with, which starts: 
''The first thing we do, let's kill all the lawyers.''
 Sometimes, one wonders whether that is the approach that we should take.

Chris Bryant: That is not an offence under this Bill.

Neil Gerrard: The hon. Member for Beaconsfield mentioned the interpretation that juries might put on the law. I am sure that that happens anyway with other parts of the criminal law. East London juries might be rather different from juries in Lancaster. I recall an hon. Member telling me that when he started to practise as a barrister his colleagues expressed astonishment that he had managed to get one of his clients convicted at a particular court in London. However, this is not just about how juries interpret. It is a question of what prosecutors look at when deciding whether to charge.
 I took the opportunity of the lunch break to look at the current CPS guidelines, which were mentioned this morning, to see what happens under the law now and how that would relate to the clause. What they say highlights the problem. We are in a situation, which we will still be in when the Bill is enacted, in which, as a matter of law, someone under the age of 16 cannot consent to an act that is otherwise an assault. However, they can consent as a matter of fact. That is the problem: matching together a matter of law in terms of consent and the matter of fact that someone has consented. 
 What is clearly in the guidelines now is that, if the victim consented, that would be relevant when considering the public interest in whether to prosecute. Factors such as the age of the defendant in relation to the victim, emotional maturity, any element of seduction, the relationship between the parties, a duty of care and breach of trust are, rightly, taken into consideration now. They are exactly the sort of factors that one would want to be taken into consideration. Ideally, we would somehow be able to bring the guidelines into the Bill, but I still have great difficulty in seeing how we could do that and produce a legally workable clause. 
 I sympathise entirely with what my hon. Friend the Member for Lancaster and Wyre says in the amendment. That is what we are all basically thinking. We need a common-sense approach, so that people are not prosecuted for what we would regard as consensual adolescent behaviour and not a problem. How one defines that may be the difficulty. This is the nearest to being an amendment with which I fully agree. I want to hear the view of the Minister and his officials as to how legally workable it might be, whether there are real problems and, if so, what they 
 are and what approaches we might be able to take to improve the amendment so that it works.

Humfrey Malins: This is a difficult clause. It is not a happy clause and I have a great deal of sympathy with the approach taken by the hon. Member for Lancaster and Wyre. Let us consider what the clause says. It will make it an offence punishable by up to five years imprisonment for a young person of 13, 14 or 15 to engage in any sexual activity with a person of similar age, even if it is consensual and/or relatively minor. It bears repeating that it would be an offence for a boy and girl aged 15 not only to have sexual intercourse, but to indulge in heavy petting, to fondle one another sexually or even to kiss mouth to mouth.
 I mentioned earlier that I had been in contact with Professor John Spencer of Selwyn college, Cambridge. I shall share some of his thoughts on the clause and the amendment, because he is as distinguished an academic as one could find and what he says may be of some help to the Government. I hope that they will take on board what he says. Professor Spencer says of the clause: 
''I share the view of many speakers in Parliamentary debates who have said that this is ridiculous. The reason was well put in respect of the existing law by Professor Brian Hogan, who took the case of 'a 14 or 15 year-old schoolboy being familiar with a schoolgirl of similar age.'''
 He said in ''On modernising the law of sexual offences'', which appeared in ''Reshaping the Criminal Law'' of 1978: 
''Such conduct is a crime for him, and a crime for her if she responds in kind. No doubt prosecutions in such cases as these are almost unheard of, but that such conduct is even technically an offence I find wholly repugnant. As all . . . research shows this makes criminals of a sizeable proportion of the population. And it is wholly wrong that conduct which has been a part (and surely not a detrimental part) of the sexual growth of nearly all of us should be stigmatised as criminal. The reformer who explained to fourth, fifth and sixth formers at any school that much of their consensual sexual conduct is criminal and ought to remain so in a modern criminal code would be deservedly laughed out of the class.''
 How can I distance myself from those observations? 
 Professor Spencer states: 
''It is no answer . . . for people to say 'It's not a change—the present law makes it illegal too.' The Bill is supposed to create a modernised, rationalised law of sexual offences, fit for the 21st Century. Nor is it any answer to say''—
 as some do— 
'''It's not possible to exclude harmless consensual behaviour between teenagers whilst enabling the law to protect children against sexual exploitation.'
French law managed to find a sensible solution when its new Criminal Code was enacted in 1994. This contains in Article 227–25 a general offence of sexual behaviour with persons who are under 15: but (unlike the earlier law) it can only be committed by adults (i.e. people who have reached the age of 18).''
 The professor thinks that 
''the solution for us would be simply to delete Clause 14, without replacement. The sort of predatory minor whom we might want to prosecute, or at least threaten with prosecution, would still be guilty of a whole range of serious offences if he turned his attention to a child under the age of 13, or did any sexual act to or with a child over 13 to which the other participant did not freely consent (in the sense in which clause 75 defines it).''
 He adds that he cannot 
''think of much behaviour by minors that we would want to prosecute which would not be caught by one of the other offences in the Bill, or some other part of the criminal law. Perhaps there might be a problem with the over-sexed youth who continually pesters other children for sex: like the 15-year-old defendant in R v B (A Minor) [2000] AC 428, who repeatedly pestered a 13-year-old girl on a bus by asking her for oral sex.'' 
The professor believes that such a scenario could be covered by a prosecution of 
''an offence under the Public Order Act—and presumably would be the case if the girl he had pestered had been over 16 (or indeed if this sort of thing were done by one adult to another).''
 He concludes: 
''If this were thought to be insufficient, then I suppose we could leave Clause 14 in, but limit its effect to some of the offences only (e.g. the incitement offence in Clause 11). I think a respectable case could be made for saying that the criminal law needs to extend to catch a minor who pesters unwilling children for sex, whilst not making consensual sex acts criminal when they are done by consenting minors over the age of 13.''
 The Government and the Minister should listen carefully to Professor Spencer's views. I do not dissent from anything the professor says. He is a top academic. I do not know what discussions officials have with top academics. Have they run such matters right past the top professors at all the universities in the country? If not, why not? Professor Spencer has been most helpful to me. The last thing he said to me was, ''Have you read 'The Secret Diary of Adrian Mole Aged 13Ž3?/?4?'?'', to which I replied, ''I think so.'' He said, ''Listen chum, look at the page that describes his adventures with Pandora, when he says, 'Pandora let me touch her bust today, but I couldn't feel much through her anorak.''' I think that the telephone call then came to an end. We must not forget what Professor Spencer said.

John Randall: Perhaps I should have saved some of my earlier comments—in response to which I received glazed-over looks from members of the Committee—for this amendment because I have a great deal of sympathy with it. Had I done more homework, I might have added my name to it when it was tabled. However, having heard my hon. Friend the Member for Woking, I am interested in what the Minister has to say about clause 14 and whether it is necessary.
 I am at a disadvantage because my children range in age from 13 to seven. Listening to what is being said in Committee, I worry when I think of the ''ordinary . . . adolescent behaviour'' that is to come. I have a problem with laws that may be broken—we must endeavour not to create laws that need be obeyed only in certain ways. That makes an ass of the law. 
 I understand the position of the legal profession and I do not want to knock it. Before I was elected, it was easy for me to say that Parliament has too many lawyers. Now, when I sit through proceedings in Committee, I say, ''Thank God for lawyers,'' because they are often the only people who understand some of the intricacies, and they are the ones who will have to deal with the laws we pass. However, it is a shame that common sense is not allowed to be part of the proceedings. I believe that it was my hon. Friend the Member for Beaconsfield who said that common sense cannot be defined in law and that it would be different in different areas, which is absolutely true. I have some 
 academic background for that assertion: I remember reading a treatise on different Serbian villages between the wars. One village regarded sex before marriage as perfectly acceptable, whereas a village 10 miles down the road did not. We can understand that. I live in Uxbridge, in suburbia—not the dizzy heights of Hampstead and Highgate, but a fairly ordinary sort of place. 
 We talked about issuing guidelines, so someone will be making a value judgment about potential prosecutions. Old-fashioned though it may be, I would prefer to rely on the 12 men or women on a jury to take a view. I understand the problems. Perhaps the lawyers on the Committee would consider it a lucrative area of practice.

Hilton Dawson: When the hon. Gentleman's four children reach their teenage years, would he rather that they were dealt with by a jury, the police or the CPS or by their teachers, himself or other members of his family making sensible decisions based on the evidence before them?

John Randall: The answer is obvious. Incidentally, I have three, not four, children—although the change of parliamentary hours might change that.

Chris Bryant: Too much information.

John Randall: Perhaps it is.
 As hon. Members have said, we will be sending out a rather strange, albeit well intentioned, message. One of my constituents, an 11-year-old, was raped by a 13-year-old. I come from a sheltered background, and I found some of things that I heard at yesterday's presentation deeply shocking. We would be sending out a strange message if we said that although we do not expect cases to be taken to court, much normal behaviour is technically a criminal offence. I have a great problem with that.

Vera Baird: I share the sentiments that motivated my hon. Friend the Member for Lancaster and Wyre to table the amendment and I do not want to spoil it, although I cannot stop being a lawyer. I thought that the hon. Member for Beaconsfield overstated the case when he talked about the range of possible findings that would emerge from reasonable juries in different geographical locations. After all, the point of having a jury is that there are 12 members and they cancel out each other's prejudices—at least, that is supposed to be the point. I do not believe that the amendment is all that unworkable, although I have other reservations about it.

Sandra Gidley: The hon. and learned Lady might be in a position to answer a question that has been vexing me. In clause 1, the Government appear to be quite happy to leave it to a jury to decide whether a behaviour was reasonable. We seem, somehow, to have a problem with giving the same responsibility to a jury in the few cases that will be brought to court under clause 14. Perhaps she would care to comment on that.

Vera Baird: That thought occurred to me as I listened to the hon. Member for Beaconsfield. I suppose that he would say that what has been left for a jury to decide under amendment No. 11 is a
 much wider question than whether in an individual case somebody behaved reasonably. To some extent I agree with that. One is considering what people think is reasonable consensual behaviour. Perhaps it would be better if the hon. Gentleman answered that question.

Dominic Grieve: Yes, indeed—what is
''ordinary, consensual adolescent behaviour''?
 That is the problem. It is a wide concept. Somebody with a Christian background and someone from another cultural background might have very different notions of what is appropriate. People would be uncertain about what is and is not permissible. Whether one could justify one's actions would be a lottery.

Vera Baird: I thought that that was what the hon. Gentleman meant. With the greatest respect, however, there is no suggestion that the amendment is legally drafted, so it is possible that it could be tightened up, leaving the issue couched in narrower terms. I am worried that amendment No. 11 might be compared and contrasted with amendment No. 132. I am surprised, now that I reflect on it, that the hon. Member for Beaconsfield, who tabled that amendment to clause 10, did not table an identical amendment to clause 14 as well as or instead of the amendment to clause 10.
 I should like to discuss amendment No. 132 in criticising amendment No. 11. I hope that I am not wandering away from the point, Mr. Griffiths. If amendment No. 132 were made, conduct that would otherwise be an offence under clause 14 would not be an offence if there were only a small age difference between the parties. I suppose the point is that the one who might object the most has the capacity to consent and does so. That might be an appropriate criterion to apply to clause 14. 
 The amendment tabled by my hon. Friend the Member for Lancaster and Wyre also says that if actions are consensual, they are not unlawful. However, in addition to the activity being consensual, under my hon. Friend's amendment the jury has to decide that it is also ''ordinary . . . adolescent behaviour.'' There are two tests in amendment No. 11 and I do not know whether the second—the more difficult of the two—is necessary.

Dominic Grieve: I initially envisaged amending clause 14. Indeed, that could be done very easily with roughly the same wording. My reason for not doing that was that, on reflection, it seemed that clause 14 was providing for a different tariff of sentencing where an offence had taken place. That is a matter of drafting. If it is better drafting to shift my amendment to clause 14, it could be done quite easily.

Vera Baird: Amendment No. 132 is more attractive. Although it achieves most of the aims, I suggest that my hon. Friend the Member for Lancaster and Wyre intends—

Chris Bryant: I do not think that my hon. and learned Friend has read the whole of amendment No. 132. It continues over the page, where it says:
''the conduct does not involve penetration.''
 Would she want to incorporate that into her version of the amendment to clause 14?

Vera Baird: I was about to come to that. I would.

Humfrey Malins: The hon. and learned Lady said that she was a little surprised that an amendment was not tabled to clause 14 as it was to clause 10. My hon. Friend the Member for Beaconsfield and I tabled a similar amendment to clause 14, but it was grouped with other amendments debated under clause 10—although I did not speak to it at length at that point. I am not sure it was necessary for me to have mentioned that.

Vera Baird: Let me shake my head and try to grasp the import of what the hon. Gentleman has just said.
 A second aspect of amendment No. 132 makes it preferable to amendment No. 11. The age of consent for sex—or penetration—should either be 16 or not. We cannot say that we agree with that age of consent but then not apply it in some circumstances. That is not practical. Either the state thinks that a girl under 16 cannot consent to sex, or it does not. It does not matter who she has sex with; the state must take a position and keep to it. The other advantage of amendment No. 132, or an amendment along similar lines, over amendment No. 11 is that it would allow consent to everything other than penetration.

John Randall: I understand what the hon. Lady is saying, and in my own small way I was thinking the same. However, if the state says that a girl under 16 should not have sex, why is it that we often do not prosecute?

Vera Baird: There is the option to do that, and sometimes it occurs. I have defended several people who have had sex with girls under 16—sometimes they have been a lot older than her, and sometimes not.

John Randall: I was wondering whether there were cases in which the girl is the one who is prosecuted.

Vera Baird: I am talking about girls being prosecuted. Why, often, we do not prosecute the girl is a good question. I cannot answer that, but I am sure that the Minister can.
 The hon. Member for Mid-Dorset and North Poole made the point that if we make legislation that says, ''People under 16 can do everything but'', we might discourage those people from pursuing family planning. They will think, ''We are not going to do that, so we don't need to know.'' I do not know whether the situation will be made any worse. As the hon. Member for Beaconsfield said this morning in another context, we should draw a line and say, ''You should not have sex until you're 16'', but none the less provide all the sex education that is given currently. I hope that that unhappy compromise might be a reasonable answer. 
 As we all agree, this is a difficult area—we are all still touting like mad for the Home Secretary's 
 champagne. However, the Government should think again. In the spirit of what my hon. Friend the Member for Lancaster and Wyre and other hon. Members have said, all of which has confirmed my view, I would say that it might be possible to reach a formulation, such as that of amendment No. 132, that would allow the sort of petting that everyone knows goes on between teenagers preparatory to sex. There could be a formulation that did not criminalise that, as it would make consent a practical proposition. Such an amendment would say that it was against the law to have sex under age, and that would be consistent with our respect for the age of consent. I commend the Government to look again at a formulation similar to that in amendment No. 132.

Paul Goggins: Although the hour is getting late, the quality of the debate has remained excellent and has reflected many of the concerns that have been expressed throughout the day.
 During our discussions, we have focused on the difficult issues about consensual sexual activity between under-16s, which some would describe as harmless. Clause 14 is important, because it extends the provision to cover serious sexual assaults on children that are carried out by children. This morning, my hon. Friend the Member for Lancaster and Wyre noted that a third of sexual assaults on children are carried out by other children, and that is reflected in clause 14. The clause takes account of age, so the penalties are lower than those in clauses 10 to 13. The object of clause 14 is not to criminalise what some would describe as harmless activity, but to criminalise activity that is seriously harmful to children when carried out by other children. 
 The amendment attempts to seek clarity, but results in greater complexity. I would be the first to admit that the wording of the amendment, and the aspirations that it reflects, have been devised by very experienced, committed people inside and outside the House, who know about such issues and have been desperately searching for an answer. I support all those who have made positive comments. I echo the point made by my hon. Friend the Member for Cardiff, North (Julie Morgan), in that I recognise the spirit in which the amendment was drafted. However, we must have legislation that works. 
 Much has been said about how a court would know whether a child had rightly or lawfully engaged in sexual activity, but I ask the question, ''How would a child know?'' How would a child be able to interpret what was lawful and what was not lawful, as they were about to set out on their sexual activity? The question is relevant and should be asked. 
 The simple words ''reasonable'', ''ordinary'', ''consensual'' and ''adolescent'' have vast meaning. For example, when does adolescence begin and end? For some people, perhaps adolescence never ends, but the term ''adolescent'' is not defined precisely in terms of years. I think that we have covered the word ''ordinary''. My youngest son is about to start university in Lancaster, so perhaps we will find out whether there is a difference between what is ordinary in Lancaster and in Manchester. We discussed ''consensual'' earlier, and said that what may appear 
 to be consensual between a mature 15-year-old and an immature 13-year-old may not be so. 
 My hon. Friend the Member for Walthamstow asked why the amendment would not work, and I am trying to explain why it would not. Those words are so vast in their meaning that they cannot be pinned down in the Bill in the way that they should be. If each of us in the Room were to define those four words, I suspect that there would be some variation in understanding, and if we were to extend that to the wider community, it would be even more confusing. We must be precise.

Neil Gerrard: I wonder whether the Minister would address the point raised by the hon. Member for Woking, who cited the opinion of an academic that if clause 14 were not in the Bill at all, people who would have been caught by it would be caught by offences in other clauses. I would like clarification of that point. If the clause were not in the Bill, what sort of activities would no longer be caught by other clauses?

Paul Goggins: My hon. Friend asks a very good question. Clause 14 recognises the fact that in some cases the assault is carried out by another child, so it puts in place lesser penalties. Therefore, at one level it would make no difference, but at another it would, because the penalties are different. That is the substantial difference that clause 14 represents.

Neil Gerrard: If that is the intention, is there a possibility of other clauses including lesser penalties dependent on age, rather than retaining clause 14?

Paul Goggins: It is important that having had the consultation—I shall come to that later—the Government were asked to take account of the fact that children who commit such offences, heinous though they may be, deserve a lesser penalty. That is the purpose of the clause and without it children could commit the offences but would face longer prosecutions. That is the difference that the clause makes.

Vera Baird: I wonder whether my hon. Friend is right about that. Clause 10 criminalises sexual touching for people aged 18 or over and clause 14 criminalises that for people aged under 18, as well as applying a lighter sentence. If clause 14 were removed, there would not be that specific criminality, although it might exist in other clauses.

Paul Goggins: My hon. Friend the Member for Walthamstow was asking whether amendments could be made to earlier clauses to take account of the fact that children sometimes carry out those actions. That might have been possible, but would not have related to the lower penalties. My hon. and learned Friend the Member for Redcar is correct in that clause 14 reflects the fact that children can commit those offences. It is precisely to capture those offences when committed by children that the clause is in the Bill and linked to lower penalties.

Sandra Gidley: It might not be entirely clear that a long string of amendments that we tabled sought to do precisely that and would effectively have removed clause 14 but provided lesser sentences for under-18s who fell foul of other clauses. However, the
 Committee decided that it did not like those amendments.

Paul Goggins: I simply make the point that we must recognise in the Bill that such assaults are sometimes carried out by children. Either we can amend clauses 10 to 13 to reflect that—but they carry heavier penalties—or we must have clause 14. Having considered the matter and thought long about it, our judgment is that we should have clause 14, which recognises and deals with the fact that the perpetrator is sometimes a child, but relates that to more appropriate offences.
 I want to press on because time is becoming short. I return to a comment made by my hon. Friend the Member for Lancaster and Wyre, who asserted strongly this afternoon the importance of the age of consent. I agree and I believe that there is general agreement in the Committee about the importance of the age of consent of 16. However, if his proposal were accepted, it would remove the age of consent for people covered by the exception that he created. There would be a two-stage age of consent instead of one clear age of consent, and one age of consent could be overridden in certain circumstances when the definition of ordinary consensual adolescent behaviour was captured.

Hilton Dawson: Without something like that in the Bill, would not the age of consent be undermined, as it is now? The hon. Member for Uxbridge (Mr. Randall) asked a pertinent question: why are there so few prosecutions when so many young people break the law?

Paul Goggins: My hon. Friend makes an important point. We do not know how many prosecutions occur and I shall try to find out, but they should happen when it is appropriate. I want to link that comment to another comment made by my hon. Friend. The reality is that children and young people do engage in sexual activity. I recognise that. My constituency probably has one of the highest rates of teenage pregnancy in the country. That may be true, but that is not a reason for legalising the behaviour. That is the importance of the age of consent.

Dominic Grieve: If we can improve the law by sending a clear message about what is acceptable and what is not, it might help young people to determine what is acceptable and unacceptable behaviour. Allowing a 13-year-old to engage in heavy petting with someone up to three years their senior provides the benchmark for what is acceptable, whereas penetrative sexual activity is not. That might encourage the sort of improvements in sexual behaviour that the Minister and the Government seek.

Paul Goggins: I shall respond to that and link it with the comments of my hon. and learned Friend the Member for Redcar. I almost always find her comments persuasive. The difficulty in applying amendment No. 132 here is that once we get into the mathematical formula of ages and start talking about the difference between penetrative and non-penetrative
 sexual activity we enter a minefield. We can all think of non-penetrative sexual activity that is extremely serious if it is going on between children.

Chris Bryant: I am still somewhat perplexed. As far as I can see, if we removed clause 14 a person under the age of 18 would still be liable under clauses 1, 3 and 4. The vast majority of cases involving someone under 18 are already dealt with elsewhere in the Bill. We are talking only about clauses 10 to 13, which do not relate to penetrative sexual activity. Is clause 14 strictly necessary?

Paul Goggins: I will try to provide my hon. Friend with a persuasive answer. Where the activity is clearly non-consensual, the non-consensual offences will apply. We are talking here about cases where some doubt is raised by the defence. As I explained to my hon. and learned Friend, the extension in clause 14 is to cover the reality that far more children than we would wish are engaged in this activity.

Vera Baird: My hon. Friend said that there were some predatory young people. That is right. If one introduces the defence of consent into a clause-14 type offence, someone could still be prosecuted if they had preyed on someone and there was not consent. It would not prevent that from happening. It would simply shift it into the area where consent was an issue. That is a step that my hon. Friend should consider.

Paul Goggins: I shall consider all comments and recommendations. We are trying in these clauses to add more protection where consent is less clear than it is when one of the non-consensual offences applies. The balance is clearly a difficult one, but the objective in this part of the Bill is to add protection for children even when the activity engaged in is with other children.
 I should like briefly to return to another point that is partly in response to the hon. Member for Beaconsfield. He was talking about the activities of young people and the fact that children and young people sometimes engage in sexual activity. He made a strong assertion about the need for the age of consent. While we accept that children and young people do engage in sexual activity of different kinds, we have a duty to send a message to those who do not that limits the pressure on them to feel that they are odd or not behaving normally. 
 The hon. Member for Woking asked me how extensively we had consulted academics and others. I am sure that he will be aware that there was extensive consultation before the Bill was drafted. The consultation involved a wide range of individuals with academic understanding of the issues, and, perhaps even more important, individuals and organisations that work, day in, day out, with children and young people who, as victims or perpetrators, fall within the concerns that we are debating. 
 I have tried to respond to the issues that have been raised. I say to my hon. Friend the Member for Lancaster and Wyre that I do understand. His professional background has given him great experience of such issues and he speaks in the spirit of demanding to improve the situation. However, in 
 his quest for greater clarity, his amendment would introduce greater complexity, and I beg him to withdraw it.

Hilton Dawson: I am prepared to respond positively to the Minister's overtures to withdraw the amendment. As a Lancastrian, I think that he committed a great calumny on my right hon. Friend the Home Secretary. I am sure that if he approached the Home Secretary in the correct spirit and talked about the hard work that has been displayed by all members of the Committee, the Clerks and officials, the Home Secretary would provide that magnum of champagne as a consolation prize. It is worth a try, anyway.
 I am sorry that the amendment has not found favour. There is a huge problem involving the law about the age of consent. Across the Room, people have expressed their support. We are talking about something that is breached so often and shrouded in so much confusion. My amendment was an attempt to include in the Bill some of the reasoning that must be employed not only by juries, the Crown Prosecution Service and police, but by parents and everyone in contact with teenagers. I hope that we can continue 
 discussions, perhaps outside this forum, to achieve something a great deal more satisfactory for Report. If we go ahead with the provision in its current form, it will greatly undermine the age of consent and bring the law and Members of this House into disrepute with young people, who are incredulous that, in our worthy attempts to protect them from the serious offences that are often committed by other young people, we are placing just about every single young person at risk from this legislation. I hope that there will be a debate on stand part. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Win Griffiths: We do not need a stand part debate because the debate on this subject has lasted well over an hour and has been wide ranging.
 Clause 14 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at nine minutes past Five o'clock till Tuesday 16 September at ten minutes past Nine o'clock.